Justices Asked To Review 'Second-Generation' Busing Issues

Washington--In what some observers consider an important
"second-generation" desegregation case, the Nashville, Tenn., school
board has asked the U.S. Supreme Court to permit several changes that
would increase segregation in some schools but would, school officials
say, improve educational quality and parental involvement.

At issue is an order entered in 1981 by U.S. District Judge Thomas
A. Wiseman Jr., which would have brought schools in outlying areas of
Davidson County into the desegregation plan; permitted secondary
schools' enrollments to be up to 85 percent of one race; allowed
children in grades 1 through 4 to attend neighborhood schools; and
added remedial programs in predominantly black schools.

The U.S. Court of Appeals for the Sixth Circuit temporarily blocked
Judge Wiseman's plan in August 1981, throwing the school district into
chaos a few days before the scheduled opening of school. Last July, the
appellate court rejected Judge Wiseman's plan on its merits. The school
board is appealing that decision.

Since 1971, most of the schools in Nashville and surrounding
Davidson County have operated under a desegregation order requiring
busing and approximate racial balance. About one-third of the
district's schools were exempt from the original order because they
were in semirural, outlying sections of the county.

In 1971, black students made up 25 per-cent of the district's total
enrollment; this year, blacks make up about one-third of the district's
nearly 70,000 students.

Both the black plaintiffs and the school board agreed, in court
proceedings beginning in 1978, that black elementary-school students
bore a disproportionate burden of busing, that black parents found it
difficult to participate in their children's schools because of the
distance from their homes, and that demographic changes necessitated
some changes in attendance zones.

But after Judge Wiseman determined that the entire plan should be
re-evaluated, the two sides differed sharply on what should be done to
correct the problems.

"We think the school district has been closing schools in black
areas so that the burden of transportation falls heavily on black
kids," said Bill Lann Lee, a lawyer for the naacp Legal Defense and
Educational Fund who is representing the minority plaintiffs in the
27-year-old suit, Kelley v. Metropolitan Board of Education of
Nashville and Davidson County. "If you spread [the burden of busing]
out, you get more parental involvement."

Preferred Programs

The approach preferred by the school district, and endorsed by Judge
Wiseman, is to keep more students in neighborhood schools, to create
more magnet schools, and to provide special programs in schools with
high concentrations of minority students.

School officials contend that extensive busing has not succeeded in
closing the achievement gap between black and white pupils, although
black students' performance has improved, according to Marian F.
Harrison, a lawyer for the school board.

"This is the first case I've ever seen or read about in which there
was an extensive analysis of a racial-balance plan that has been fully
implemented and on its effects--whether it works and whether it has the
desired results," Ms. Harrison said. "As a second-generation case, the
district judge thought maybe some priorities needed to be
readjusted."

"I suspect that if we're successful in getting the Supreme Court to
review this, and if Judge Wiseman's order is approved, there will be a
lot more district courts willing to get into the process," she
said.

Mr. Lee, however, contends that the school district did not comply
fully with the 1971 order mandating racially balanced schools, and that
it is thus impossible to say whether it has succeeded or failed. He
agrees with the board, as did the Sixth Circuit, that special remedial
programs should be added to the curriculum, but maintains that the new
programs should be accompanied by better racial balance in the
schools.

"Judge Wiseman recognized that there was continuing discrimination,
that you have to solve the problem at the countywide level, and that
there is a disparate burden [on black children]. Where he made his
mistake was in deciding there should be less desegregation."

The school board's legal arguments are based largely on the Supreme
Court's 1976 decision in Pasadena City Board of Education v. Spangler,
in which the Court held that a school board, once it has complied with
the constitutional requirement to desegregate, is not obligated to
continue changing student-assignment patterns to keep schools racially
balanced if demographic changes result in imbalances in some
schools.

Furthermore, the board contends in a petition filed with the Court
late last month, the Sixth Circuit misconstrued the Court's 1971 ruling
in Swann v. Charlotte-Mecklenburg Board of Education in rejecting the
student-assignment plan proposed by the board.

In Swann, the board's petition points out, the Supreme Court
authorized busing for approximate racial balance as an acceptable means
of desegregating schools, but has never said that busing is the only
acceptable method.

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